Holder v. Sheiman

268 A.D.2d 246, 701 N.Y.S.2d 44, 2000 N.Y. App. Div. LEXIS 321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Howard Silver, J.), entered October 7, 1998, which, in this medical malpractice action, awarded plaintiffs the principal amount of $650,000, upon a jury verdict of $500,000 for past pain and suffering, $100,000 for future pain and suffering, and $50,000 for loss of services, unanimously modified, on the facts, to vacate the award for past pain and suffering and remand the matter for a new trial solely upon the issue of plaintiff Vida Holder’s damages for past pain and suffering, and otherwise affirmed, without costs, unless, within 30 days of the date of this order, plaintiff Vida Holder stipulates to accept $325,000 for past pain and suffering, and plaintiffs stipulate to entry of an amended judgment in accordance therewith.

Plaintiff Vida Holder suffered an extravasation during chemotherapy treatment. While the record is equivocal as to whether she told the administering physician that she was feeling pain during the infusion, the issue of what she said during the procedure is one of credibility, and the hospital records made after plaintiff sought treatment for the extravasation are not so unambiguous as to permit the conclusion that the jury’s verdict as to liability was irrational or against the weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d ). Defendant’s claims of prejudice by reason of plaintiffs’ summation are either unpreserved or insufficiently compelling to warrant appellate relief.

We do find, however, that the damages awarded by the jury deviate materially from what is reasonable compensation under the circumstances, and modify to the extent indicated. Concur—Lerner, J. P., Saxe, Buckley and Friedman, JJ.